The Endangered Species Act:
Making Innocent Species the Enemy
By Richard L. Stroup
PERC's 1994 Congressional Staffers' Conference, held in
Annapolis, Maryland, in November.focused 011 the
Endangered Species Act. The meeting, directed by PERC Senior
Associate Richard L. Stroup, brought together staff members likely
to be involved in the debate 01•er reauthorizing the Act. This article
discusses the problems with the Act and suggests improl'ements. The
illustration on page 5 is by Arthur Singer from Birds of North America
© 1983, 1966 Western Publishing Company, Inc. Used by permission.
T
the demands of the biologists in the Fish and Wildlife
he Endangered Species Act (ESA) runs us
Service. The biologists have no economic incentive
squarely up against the basic economic
to limit their demands. They have no budget to reproblem, the problem of scarcity. Our resources for
saving species, just like any other endeavor, are limstrain them because they have no requirement to comited and have other uses. But supporters of the curpensate the owners they control.
The results can be devastating for the landowner
rent Endangered Species Act would like to avoid
who has listed species on his or her land (or who has
the idea of scarcity. They would like to believe that
habitat that might attract listed species). And they can
their mission transcends all others.
be devastating for the species as well.
The conflict between the fact of scarcity and the apThe case of Ben Cone illustrates the effects. Jn
parent ability of the Fish and Wildlife Service to dis1982, Benjamin Cone, Jr., inherited 7200 acres of
regard limits is the underlying problem with the Act.
land in Pender County, North Carolina. He has manUntil that conflict is resolved, the ESA will not work
aged the land primarily for wildlife. The wild turkey
effectively to save species.
has made a comeback in North Carolina partly due to
The ESA, as now interpreted, requires Fish and
his efforts. He has planted chuffa and rye for the turWildlife Service (FWS) biologists to control uses of
key. He burns the property frequently to provide habilands that they consider important for endangered or
tat for quail and deer.
threatened species. To
In the 1970s Ben
preserve a species'
"The biologists have no economic incentive
Cone and his caretaker
habitat, the Fish and
to limit their demands . .. because
noted a couple of redWildlife Service dethey have no requirement to compensate
cockaded woodpeckers
cides whether farming
the owners they control."
on the property, but the
or logging or building
birds posed little probor other activities will
be allowed. (Such power is not written into the law itlem because Cone did not wish to log their habitat at
that time. In 1991 , when Cone tried to sell some timself but reflects the current interpretation of the Act)
On such land, private or public, biologists become, in
ber from his land, the presence of the birds was formally recorded. Cone hired a wildlife biologist to
effect, land managers on behalf of the listed species.
When a northern spotted owl, red-cockaded wooddetermine the numbers of birds, which are now bepecker, or other endangered or threatened animal is
lieved to consist of 29 birds and 12 colonies. According to the Fish and Wildlife Service's guidelines, a
found on private property, nothing is paid to the owncircle with a half-mile radius must be drawn around
ers of the land. Yet the owners are required to meet
March 1995
4
PERC Reports
(
and private landowners to do what they think should
each colony, within which no timber can be harvested. If timber is harvested, Cone is subject to a sebe done, and this makes endangered species into the
enemy
of the landowner.
vere fine and/or imprisonment under the Endangered
It is ironic that the Constitution explicitly forbids
Species Act. Biologists estimate that 1560.8 acres
have been affected by the bird's presence. T his land is
the government from requiring a citizen to quarter a
soldier (that is, provide food and shelter). Yet the govworthless for its timber (but he is still required to pay
taxes on its previous value).
ernment is allowed to requi re the same citizen to
quarter a grizzly bear, a spotted owl, or any other
Cone has made several changes in the way he manages the wildlife and timber. In the past, he clearcut a
member of a threatened or endangered species. If the
Defense Department had the same power to demand
50-acre block every five to ten years. Since the woodthe billeting of soldiers as the FWS does now for enpeckers were found, he has clearcut 300-500 acres
every year on the rest of his land. Cone told an invesdangered species, we could expect to see soldiers
tigator, "I cannot afford to let those
feared and despised, perhaps even ambushed.
woodpeckers take over the rest of the
So far, no actions taken by the Fish
property. I'm going to start massive
and Wildlife Service under the ESA have
clear-cutting. I'm going to a 40-year robeen judged by a court to be a "taking"
tation instead of a 75- to 80-year rotaand thus subject to compensation under
tion."
Some environmentalists argue that ex the Fifth amendment. In fact, few, if any,
amples like Cone's are merely "anecdoESA cases have been brought before a
court. (Ben Cone has considered a suit as
tal," or isolated instances that
one option). However, this may change,
exaggerate the negative impact of the
and recent Supreme Court decisions sugESA. Or they paint these individuals as
placing their wealth above their social
gest that it may recognize control of land
responsibilities.
Endangered Woodpecker to protect endangered species as a takBut Michael Bean, the Environmental - - - - - - - . - - - - - - ing. If so, compensation will be required,
Defense Fund attorney often credited with writing the
and the cost to taxpayers could be substantial. Such a
Endangered Species Act, told a group of FWS offidecision would spur revision of the law.
But whether the courts rule that this control is a takcials that there is "increasing evidence that at least
ing or not, the law should be changed. When the Fish
some private landowners are actively managing their
land so as to avoid potential endangered species proband Wildlife Service takes control of private land, it
should pay compensation, possibly in the form of a
lems." He said that these actions are "not the result of
rental payment. Compensation would reduce the curmalice toward the environment" but "fairly rational
decisions motivated by a desire to avoid potentially
rent fear and hatred for endangered species on the
part of landowners and thus would lead to greater prosignificant economic constraints." He called them a
tection. In addition, the need to consider the true
"predictable response to the familiar perverse incentives that sometimes accompany regulatory procosts of its actions (since they would no longer be
grams, not just the endangered species program but
costless to the FWS) would cause the FWS to search
for economical, cost-effective habitat and manageothers."
ment plans. By entering the budget process, the Fish
Many of Bean's colleagues in the environmental-acand Wildlife Service would come to recognize that retivist community simply refuse to recognize the ac. . 1
tual consequences of the ESA. They have acted as
sources h ave 1im1ts.
though their mission- protection of endangered spe1. It is possible that change will come by a different avenue. The
Supreme Court has agreed to reconsider the Fish and Wildlife
cies-trumps all others. But the Act is failing because
Service's claim that the law requires it to tell landowners how to
government officials can avoid weighing one allocause their land. Rejection of the current interpretation would severely reduce the power of the Fish and Wildlife Service.
tion against the other. They can simply order agencies
PERC Reports
5
March 1995